When you file a work comp claim, the claim is assigned to a workers’ compensation adjuster for your employer’s insurance company. That adjuster is responsible for reviewing the facts of your claim and applying the rules of the Montana Workers’ Compensation Act to your claim to determine if you qualify to receive workers’ compensation benefits.
There are generally three parts to the adjuster’s investigation: (1) gathering the facts of the accident and your medical background from you; (2) gathering relevant medical documents about the injury you suffered; and (3) getting the employer’s side of the story and find out whether the employer questions or disagrees with your claim.
One of the first documents you will receive from the insurer after you file your claim is a request to know what doctors you have seen and a medical release of information for you to sign. Before you sign it, you should read it carefully. The Montana Constitution (Click to Read: Article II, Section 10) has a strong right to medical privacy, and workers’ compensation insurers routinely count on you not reading the release and just signing away your privacy rights. Understand that the insurer is only supposed to get medical records that are relevant to your injury. That means you don’t have to tell the insurer about doctors who haven’t treated you for your injury. You may need to tell them about the treatment you received in the past for the same part of your body. But the rest is off-limits.
Insurers are also not allowed to contact your doctor and talk to them without giving you a chance to be part of the discussion – unless you waive your right to privacy. Generally, the insurers just send you a release and again, count on you not to read it. The release form usually has a paragraph with this language:
INTERVIEWS/CONVERSATIONS WITH MY MEDICAL PROVIDERS AND WAIVER OF RIGHT TO BE PRESENT: I understand that I have a right of privacy under federal and state laws in regard to healthcare information and issues concerning healthcare and my workers’ compensation or occupational disease claim. I further understand under stated law that I or my attorneys have the right to be present whenever third parties, such as adjusters, medical case management workers, and vocational rehabilitation counselors, discuss my health care information. Knowing of such right, I hereby voluntarily and expressly waive that right of privacy and hereby give permission to the insurer, any adjusters, medical case management workers or vocational rehabilitation providers to conduct such interviews or conversations with my healthcare providers without me or my attorney being present.
The keywords in this paragraph are at the very end:
I hereby voluntarily and expressly waive that right of privacy and hereby give permission to the insurer, any adjusters, medical case management workers or vocational rehabilitation providers to conduct such interviews or conversations with my healthcare providers without me or my attorney being present.
By signing this, you are letting the adjuster and any agents of the adjuster, chat up your doctor and say anything they want about you. Don’t ever sign a release if you see this language. Insist that the language be removed.
Which Insurers and Agents Use this Type of Release?
Liberty Northwest, Liberty Mutual, Helmsman Management Services, Sedgwick, Intermountain Claims, and Genex (medical case managers and vocational managers) all use some type of waiver using this language in their release forms. DON’T sign these forms.
Typically, the state’s largest insurer, Montana State Fund, does not use this language.
What if You’ve already signed the Release Form?
Revoke it in writing immediately. State the following:
All permission to speak directly with my medical providers without notice to me and an opportunity to participate, is immediately revoked consistent with the Montana Supreme Court’s decision in Malcomson v. Liberty Northwest, 2014 MT 242. Please notify any personnel already assigned to this.
Read what the Court said in Malcomson by clicking HERE:
The Actual Investigation:
(1) The Adjuster Will Talk to You
The adjuster will contact you to get your side of the story. They will ask about the details of what happened or how the condition developed, but also about your medical history and activities outside of work (hunting, fishing, hiking, etc.). Part of this is to determine if you were hurt doing something other than working. And part of this is to gather details that may be needed later in the claim.
(2) The Adjuster Will Talk to Your Employer
The adjuster will talk to your employer to get an understanding of what happened to cause your injury or condition. The employer is the adjuster’s customer. Adjusters pay special attention to the employer because the employer is paying for the policy. If the employer questions your claim, the adjuster will look at your claim with a more critical eye and try to make the employer happy. The adjuster is also gathering personal information from the employer to understand your background. A good employer can make a claim easier by being supportive of you as an employee and as a person. If you don’t have a good relationship with your employer, don’t be surprised if the adjuster hears about it when they contact the employer.
(3) The Adjuster will Review Your Medical Records
The third part of the investigation is the medical review. The adjuster cannot talk to your doctor without your involvement, but they can contact the office staff and request information. By reaching out to office staff, it usually means the adjuster gets your treatment notes, has a schedule of your doctor appointments, and knows about any referrals for other treatments.
With that information in hand, the adjuster should determine whether your claim is accepted or denied. The adjuster has 30 days to make a decision. At the end of the 30 days, the adjuster should do one of the following: (1) accept your claim; (2) deny your claim; or (3) designate your claim for further investigation using what’s called the “608” law. On a rare occasion, the adjuster could simply say they will pay your bills under “610” and not make any decision.
To learn more about the things an adjuster can and should do, download our free book, Hurt at Work: An Insider’s Guide to Understanding your Montana Work Comp Claim” by going to the main page of our website: https://mtworkcomplawyer.com. If you don’t want to download, just ask and we’ll send you a copy for free.